Balaei (Migration)

[2020] AATA 1105

Balaei (Migration) [2020] AATA 1105 (20 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Masoumeh Balaei
Mr Bahram Ghamarigilvaei

CASE NUMBER:  1823557

DIBP REFERENCE(S):  BCC2016/3594629 BCC2016/3759717 BCC2018/4130161 BCC2018/4308603 BCC2018/4328323

MEMBER:Robyn Anderson

DATE:20 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

Statement made on 20 March 2020 at 5.00pm.

CATCHWORDS
MIGRATION – Business Skills (Residence) (Class DF) visa – Subclass 890 (Business Owner) – preliminary issue – BAS statements not included with visa application – provided 14 months after application was lodged – time of application criteria – necessary grammatical connection found in wording of provision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 54, 55, 65, 134
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 890.211, 890.212

CASES
Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562
Berenguel and Minister for Immigration and Citizenship [2010] HCA 8
Khan v Minister for Immigration and Border Protection [2018] FCAFC 85
Nasirzadeh v MIBP [2019] FCCA 1115

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 July 2018 to refuse to grant the visa applicants Business Skills (Residence) (Class DF) Subclass 890 visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 27 October 2016. The delegate refused to grant the visas on the basis that the net assets of the first-named applicant (the applicant), the applicant’s spouse or the applicant and spouse together in the main business were not at least AUD100,000.

3. The applicants appeared before the Tribunal on 17 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

4. The applicants were represented in relation to the review by their registered migration agent, Ms Oboodi-Mehr, who attended the Tribunal hearing and gave oral submissions. The Tribunal deferred making a decision to give the applicants time to make further submissions, which were received by the Tribunal on 12 and 13 February 2020.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   ISSUE

6. The central issue raised by the Department was in relation to the assets of the applicant, the applicant’s spouse or the applicant and her spouse together in the main business in Australia having a net value of at least AUD100,000 throughout the 12-month period ending immediately before the application was made, and that they have been lawfully acquired (cl.890.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations)). The Department determined that cl.890.212 of Schedule 2 to the Regulations was not met because the director’s loan account was not accepted in its entirety.

7. The Tribunal raised a preliminary issue at hearing as to whether the applicant meets the primary criteria in cl.890.21 of Schedule 2 to the Regulations. The requirements under cl.890.21 are not mutually exclusive and must all be met before the applicant can satisfy the necessary criteria at the time of application.

8. In accordance with s.359AA of the Act, the Tribunal put to the applicants that as the evidence in the Department file indicates that the Business Activity Statements were not included in the application, subject to comments or response, if it were to rely on this information in making a decision, it would be a reason for finding that the applicant does not meet the requirement under cl.890.211(2)(b) of Schedule 2 to the Regulations, and for affirming the delegate’s decision. The Tribunal also noted and discussed the recent case of Nasirzadeh v MIBP [2019] FCCA 1115 (Nasirzadeh).

9. Clause 890.211 of Schedule 2 to the Regulations sets out two main criteria, and must be satisfied as at the time of visa application. Firstly, it requires the applicant, for at least two years immediately before the application was made, to have an ownership interest in the main business (cl.890.211(1) of Schedule 2 to the Regulations). As noted above, the applicants lodged an application for a Subclass 890 visa on 27 October 2016. Therefore, the relevant period in respect of cl.890.211 of Schedule 2 to the Regulations is 27 October 2014 to 26 October 2016 (the relevant period).

10. Regulation 1.03 provides that ownership interest has the meaning given to it in s.134(10) of the Act. The definition of ownership interest in relation to a business as relevantly defined in s.134(10) of the Act means, amongst other things, “a shareholder in the company that carries on the business”.

11. Ms Balaei nominated Minoodokht Pty Ltd, trading as Gorgeous Smiles (the Business) as “the main business” in her application. For the purpose of assessing the criteria in cl.890.211 of Schedule 2 to the Regulations, the Tribunal considered the Business as “the main business”.

12. According to ASIC records before the Tribunal, Ms Balaei has been the sole director of the Business since incorporation on 16 January 2012 and continues to be so. While initially holding 50% of the shareholding with her spouse, Mr Ghamarigilvaei, holding the remaining 50%, it is evident that Ms Balaei has held 100% of the shareholding in the Business since May 2014. As such, the requirement under cl.890.211(1) is met and the Tribunal finds accordingly. It is the requirement under cl.890.211(2) of Schedule 2 to the Regulations that is the central issue in this case. In particular, the requirements set out in cl.890.211(2)(b) of Schedule 2 to the Regulations.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. On 26 November 2012, Ms Balaei and her spouse, Mr Ghamarigilvaei, were granted a Subclass 163 temporary visa. Ms Balaei gave oral evidence that she was a qualified dentist and at that time she had been running a successful dentistry business in Iran, while Mr Ghamarigilvaei operated his own business in the construction industry and continues to do so.

14. The Business operates a dental practice, which has grown from employing one dentist and two other staff to three dentists and eight additional staff.  Ms Balaei told the Tribunal that it is a profitable and reputable business. In response to a question from the Tribunal, Ms Balaei stated that the decision to relocate to Australia was based on a long-time dream to reside in a better place.  She had always loved Australia.  

    Australian Business Number and Business Activity Statements

15. Clause 890.211(2) of Schedule 2 to the Regulations must also be satisfied as at the time of visa application. It requires that, for each business to which cl.890.211(1) applies:

    ·an Australian Business Number has been obtained, and

    ·all Business Activity Statements required by the Australian Taxation Office (ATO) for the two years immediately before the visa application was made have been submitted to the ATO and have been included in the application.

16. There is no question that the Business was registered with an Australian Business Number on 15 May 2014 and continues to be registered, thereby satisfying the criterion under cl.890.211(2)(a) of Schedule 2 to the Regulations. The Tribunal finds accordingly.

17. ATO Portal generated Business Activity Statements in the relevant period clearly demonstrate that all Business Activity Statements required by the ATO for the relevant period were submitted to the ATO prior to the visa application date of 27 October 2016. As such, the Tribunal finds that the first limb of cl.890.211(2)(b) of Schedule 2 to the Regulations is met.

18. The second limb of cl.890.211(2)(b) of Schedule 2 to the Regulations requires that the Business Activity Statements for the relevant period, whether generated from the ATO Portal, an accountant’s software package or manually prepared forms, “have been included in the application”. This is the central issue in this case.

19. In the case of Nasirzadeh, the applicant lodged a Subclass 892 visa application on 16 September 2014.  On 24 March 2015, the Department requested further information, including copies of all Business Activity Statements for the relevant period.  The Business Activity Statements were provided on 22 May 2015, some eight months after the visa application was lodged.  While the Department refused to grant the application on the basis that no documentation was provided in support of either of the two nominated main businesses or the management and operation of the businesses, a differently constituted Administrative Appeals Tribunal affirmed the decision on the basis of failing to include the Business Activity Statements in the application. 

20. The decision was upheld in the Federal Circuit Court of Australia at Sydney on 22 May 2019.  The court found that cl.892.211(2)(b) imports an “objective temporal test” as to “whether or not the BAS were included with the visa application.” The court went on to hold that the regulation importing the test was valid, and that late submission of the Business Activity Statements did not meet the requirement in the Regulation. The court further noted that provision of the Business Activity Statements after the visa application date was not an issue considered by the delegate, as in this case, but was nonetheless a relevant consideration in determination of the application on review. In determining that the regulation was valid, the court noted:

    In my view, the criterion in issue serves a clear purpose of requiring applicants for this class of visa to establish business activity as a going concern over a period of two years prior to their visa application.  Further, while there may be harsh consequences, as the applicants have sought to demonstrate in this case, that is not enough to establish invalidity.

21. According to the Departmental file, the application form of the applicants was submitted on 27 October 2016.  The Tribunal is satisfied that Business Activity Statements submitted to the ATO in respect of the period 1 July 2015 to 30 June 2016 were provided to the Department at application or shortly thereafter.  Given that the Business Activity Statement in respect of the quarter ending 30 September 2016 was not yet due for lodgement at 27 October 2016, this represents the period of one year immediately before the visa application was made.  However, cl.890.211(2)(b) requires the Business Activity Statements to be included in the application for two years immediately before the visa application was made.

22. An email dated 22 December 2017 from the representative at the time, from Auslink Immigration Pty Ltd, refers to communication from the Department on 21 November 2017 requesting further information.  The email states that amongst other documents, the Business Activity Statements requested in relation to the period 1 October 2014 to 30 September 2016 were included. While the Business Activity Statements provided at this time clearly cover the relevant two year-period that is immediately before the visa application was made, they were provided some 14 months after the application was lodged.

23. In response to a question from the Tribunal, Ms Balaei stated that when she first arrived in Australia she was unaware of the visa requirements, relying heavily upon her migration agent to ensure she received the correct information.  In hindsight she thinks that although he was a registered migration agent, he may not have been a qualified lawyer.

24. The Tribunal took the applicants to clause 12 of Form 1217 [Business Skills Profile: Business Owner (Residence)] which states:

    Attach certified copies of all Business Activity Statements submitted to the Australian Taxation Office by any business in which you have an ownership interest in the last 2 years.

    Ms Balaei told the Tribunal that she simply signed where she was told without reading the documents.  She placed her trust in the professional services of the representative and expected that he would handle everything correctly.

25. Following the hearing, the Tribunal received a submission from the applicant’s representative, Ms Oboodi-Mehr, in which she asserted that this case should be distinguished from that of Nasirzadeh on two grounds.  Firstly, that this review is in relation to a Business Skills (Residence) (Class DF) Subclass 890 visa, in contrast to Nasirzadeh where the relevant visa was a Business Skills (Residence) (Class DF) Subclass 892 visa.  Secondly, it was submitted that Ms Balaei is not asserting that cl.890.211 is invalid or inconsistent/or ultra-virus, unlike the applicant in Nasirzadeh.

26. Ms Oboodi-Mehr went on to submit that in the event that the Tribunal does not accept that this case is distinguished from Nasirzadeh, then the application of ss.54 and 55 of the Act should be considered in accordance with the case of Berenguel and Minister for Immigration and Citizenship [2010] HCA8 (Berenguel). 

27. Furthermore, in the event that the above application fails due to the submission of the Business Activity Statements occurring after the lodgement of the application, it was submitted that such a construction would “lead to such plain unfairness and absurdity that is not to be preferred” (as per Berenguel).

    Is this review distinguished from Nasirzadeh?

28. The Tribunal considered the wording of cl.890.211(2) and that of cl.892.211(2) of Schedule 2 to the Regulations, which are as set out below:

    890.211

    (1)  The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.

    (2)  For each business to which subclause (1) applies:

    (a) an Australian Business Number has been obtained; and

    (b) all Business Activity Statements required by the Australian Taxation Office (the ATO) for the period mentioned in subclause (1) have been submitted to the ATO and have been included in the application.

    892.211

    (1)  The applicant has had, and continues to have, an ownership interest in 1 or more actively operating main businesses in Australia for at least 2 years immediately before the application is made.

    (2)  For each business to which subclause (1) applies:

    (a) an Australian Business Number has been obtained; and

    (b) all Business Activity Statements required by the Australian Taxation Office (the ATO ) for the period mentioned in subclause (1) have been submitted to the ATO and have been included in the application.

29. It is clear that the wording in respect of the 890 visa and the 892 visa are identical, as is the relevant period as defined in subclause (1) of the respective clauses.  As such, it is difficult to justify that there is a different meaning to the legislation in respect of the two visas.  Therefore, the Tribunal does not accept that this case is distinguished from Nasirzadeh on the basis that the application is for a Business Skills (Residence) (Class DF) Subclass 890 visa rather than a Business Skills (Residence) (Class DF) Subclass 892 visa.

30. The Tribunal acknowledges that the court’s comments in Nasirzadeh were made in the context of whether or not the criterion in cl.892.211(2)(b) of Schedule 2 to the Regulations was invalid on the basis of unreasonableness. The regulation was ultimately found to be valid. Nevertheless, the court was specific in stating that an “objective temporal test” exists which requires one to answer the question of “whether or not the BAS were included with the visa application.” There is no question that a simple question of fact must be answered, noting that the wording in the regulation in question (cl.892.211(2)(b) of Schedule 2 to the Regulations) is identical to the relevant regulation in this case (cl.890.211(2)(b) of Schedule 2 to the Regulations).

31. The Tribunal considered the specific wording of the legislation. “Included in” is not a complex legal term. The Macquarie Dictionary defines “include” as to contain, to be a part of. The Cambridge English Dictionary defines “include” as to contain something as a part of something else. In the Tribunal’s view, in the context of cl.890.211(2)(b) of Schedule 2 to the Regulations [and cl.892.211(2)(b)] a reasonable person would understand it to mean just that – the Business Activity Statements to be contained as a part of the complete application. The note under clause 12 of Form 1217 uses the word “attach” to convey a similar meaning as “included in” or “with” the application form. The Tribunal finds that the second limb of cl.890.211(2)(b) of Schedule 2 to the Regulations requires the applicant to include in (meaning attach with) the visa application at the time of lodgement, all Business Activity Statements required by the ATO for the relevant period. After careful consideration, the Tribunal finds that the applicant’s case is not distinguished from Nasirzadeh.

32. Ms Oboodi-Mehr, on behalf of the applicant, went on to assert that in accordance with s.54 of the Act, the Minister must have regard to all of the information in the application and “information” is in the application if the information is submitted with the application or is given under s.55 of the Act. Section 55 provides that until the Minister has made a decision to grant or refuse the visa, the applicant may provide to the Minister any additional relevant information and the Minister must have regard to that information.

33. Ms Oboodi-Mehr relied on Berenguel, in particular paragraphs 24 and 26 of the judgement.  The Tribunal notes that the High Court found at [24] that in the context of the Skilled visa requirement relating to English language proficiency, the purpose of cl.885.213 was “to ensure that when the Minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language” and although this criterion was under the heading ‘Criteria to be satisfied at time of application’, it did not mean that this requirement could only be satisfied by evidence provided to the Minister at the time of submitting the application.

34. At paragraph 26, the High Court went on to say:

    26. Although cl 885.213 is part of the group of clauses headed "Criteria to be satisfied at time of application", the heading does not connect grammatically to its terms. Applying s 13 of the Acts Interpretation Act, it may be regarded as "part of the regulations". It may therefore inform their construction. But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application. For example, cl 885.212 reads:

    "The Minister is satisfied that the applicant has applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority." (emphasis added)

    Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.

35. Therefore, it was contended that the Business Activity Statements provided after the lodgement of the application and before a decision was made by the Minister should be construed as “included in the application” and “the time of application” criterion should not be interpreted as “at the time of lodgement of the application”.

1. It was further submitted that not accepting the above would “lead to such plain unfairness and absurdity that is not to be preferred” (as per Berenguel).

   Is Berenguel relevant to this review?

2. In the case of Berenguel, the court considered the time of application criteria under cl.885.213 of Schedule 2 to the Regulations. The Tribunal acknowledges the finding that there was nothing to prevent the relevant information being submitted to the Minister after lodgement of the application in accordance with s.55 of the Act, as pointed out by Ms Oboodi-Mehr. However, the court went on to note that cl.885.213 was specifically contrasted to cls.885.214 and 885.215, which in addition to being time of application criteria, also specifically state that the application is “to be accompanied by” further evidence and noted that no such requirement in respect of proof of compliance exists in the wording of cl.885.213. This resulted in the application of s.55 of the Act being limited in respect of cl.885.214 and 885.215 of Schedule 2 to the Regulations.

3. In the more recent case of Khan v Minister for Immigration and Border Protection [2018] FCAFC 85 (Khan), the Federal Court of Australia dismissed the appeal, upholding the decision of the Federal Circuit Court of Australia. Both courts considered the application of cl.485.223 of Schedule 2 to the Regulations. Similarly to cl.885.214 and cl.885.215, which were distinguished in Berenguel, cl.485.223 also includes an objective temporal test in that when the application was made it was to be “accompanied by” evidence that the applicant had applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.

4. In Khan, reference was made to the finding by the High Court in Berenguel that there was an implicit and necessary grammatical connection to the words “time of visa (application) criterion” with the words “accompanied by” in cl.885.214 and 885.215 that was missing in cl.885.213, the latter being the central issue. It was for this reason that reliance on Berenguel was of no assistance to the applicant in Khan.

5. Based on Berenguel, the Tribunal does not dispute that a heading stating “at time of application” or similar, such as “Criteria to be satisfied at time of application” as set out in relation to cl.890.21 of Schedule 2 to the Regulations, does not on its own standing necessarily mean that the evidence must have been provided at the time of submitting the application. The Tribunal acknowledges the finding in Berenguel in respect of cl.885.213 that there was nothing to prevent relevant information being submitted to the Minister after lodgement of the application in accordance with s.55 of the Act.

6. However, in contrast, in respect to the second limb of cl.890.211(2)(b) of Schedule 2 to the Regulations, the wording expressly states very clearly that the Business Activity Statements are to be “included in the application”, providing a necessary grammatical connection to the heading “Criteria to be satisfied at time of application”, as discussed in Berenguel in distinguishing cls.885.214 and 885.215 of Schedule 2 to the Regulations.

7. In the case of Anand v Minister for Immigration and Citizenship (2013) 215 FCR 562, the court considered the requirement under cl.487.216 of Schedule 2 to the Regulations which, as in cls.885.214 and 885.215 considered in Berenguel, required the application to be “accompanied by” evidence that the applicant and all persons included in the application who are at least 16 have applied for an Australian Federal Police Check during the 12 months immediately before the day when the application is made.  The court found that although such an application had been made prior to the date of application, as no evidence accompanied the application form, the requirement could not be satisfied. 

8. In Anand, Katzmann J took a fairly broad view of the word “accompanied”, considering that evidence supplied around the time of application may be sufficient.  However, she concluded that the words, “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged and two days after the decision was made.”

9. According to the Macquarie Dictionary, “accompanied” means “to go or exist in company with.” The Cambridge English Dictionary defines “accompanied” as” to be provided or exist at the same time as something”, that is to be “with” something. The Tribunal considers that “accompanied by (with)” and “included in”, the latter discussed in paragraph 32 above, have essentially the same meaning and are likely understood as such by any reasonable person. Therefore, the Tribunal does not accept that interpretation of the meaning and intention of the second limb of cl.892.211(2)(b) of Schedule 2 to the Regulations in the case of the applicant is any different to that of cls.885.214 and 885.215, which were distinguished from the central findings in Berenguel, nor to cl.487.216 as discussed in Anand.

10. The Tribunal notes that the application of ss.54 and 55 of the Act was raised by the applicant in Nasirzadeh as part of the first of three grounds.  Driver J notes that only the third ground in relation to invalidity was pressed at trial. Furthermore, the court in Nasirzadeh found that the Tribunal was required to make a factual finding on whether or not the Business Activity Statements had been “included in” the application as a time of application criterion. Although in relation to consideration of the validity of the clause, a factual finding is still required. This was in relation to cl.892.211(2)(b) of Schedule 2 to the Regulations, the identical wording to the applicable legislation in this review of cl.890.211(2)(b) of Schedule 2 to the Regulations.

11. For the reasons discussed above, the Tribunal is satisfied that reliance on Berenguel by the applicant that “the time of application” criterion should not be interpreted as “at the time of lodgement of the application” in relation to the second limb of cl.890.211(2)(b) of Schedule 2 to the Regulations fails. Berenguel is relevant to this case in that it distinguishes similar clauses to the second limb of cl.890.211(2)(b) of the Regulations (cl.885.214 and cl.885.215) from the conclusion in respect of accepting evidence after the application in accordance with s.55 of the Act. The Tribunal is satisfied that the Business Activity Statements were not included in the application on 27 October 2016 and were instead provided in December 2017, some 14 months after the date of the visa application. Even if the Tribunal was to apply some flexibility, the Tribunal concludes that 14 months after the time of application does not have the close temporal connection as referred to in Anand to enable such a consideration. Therefore, the Tribunal finds that the criterion under the second limb of cl.890.211(2)(b) of Schedule 2 to the Regulations is not met.

12. In relation to the submission that the application of the second limb of cl.890.211(2)(b) in accordance with Nasirzadeh would “lead to such plain unfairness and absurdity that is not to be preferred”, as noted in Berenguel, the Tribunal considered the words of Charlesworth J in Khan that the decision of Berenguel does not “set forth any principle to the effect that considerations of fairness or absurdity are to govern the assessment of whether or not a temporal requirement exists between the making of an application and the provision of evidence…”  The impact of the legislation is particularly harsh if, as submitted by the applicants, it was failure on the part of the initial representative to request Business Activity Statements for the correct period to submit with the application.   It was further noted in Khan that “the test does not turn upon concepts of blameworthiness or deservedness. A visa application is either accompanied by the necessary evidence or it is not.”

13. The Tribunal accepts that Ms Balaei has worked hard to build up a successful business in Australia and sympathises with the difficult circumstances in which she finds herself. It is clear that she has complied with the lodgement requirements with the ATO.  However, this does not equate to including the Business Activity Statements in the visa application. The Tribunal is also cognisant of the “harsh consequences” to the applicants, as alluded to by Driver J in Nasirzadeh. In this case the consequences appear to be particularly harsh, if as stated by Ms Balaei, the error is on the part of the migration agent. Ms Balaei submitted that she should not be held to blame for the failure of the migration agent to comply and that the decision be made based only on the facts. The terms of cl.890.211(2)(b) are clear, without ambiguity. It is not the Tribunal’s position to go behind such a clear intent. The facts are that the Business Activity Statements were not provided until 14 months after the visa application was lodged. The Tribunal has no discretion to consider compassionate or compelling circumstances when determining whether or not cl.890.211(2)(b) of Schedule 2 to the Regulations is satisfied.

14. Accordingly, the Tribunal finds that Ms Balaei is unable to meet the criterion under cl.890.211(2)(b) of Schedule 2 to the Regulations. It therefore follows that Ms Balaei fails to meet cl.890.211 of Schedule 2 to the Regulations.

15. For the sake of completeness and at the request of the applicant, the Tribunal also considered cl.890.212 of Schedule 2 to the Regulations in relation to the main business nominated by Ms Balaei. In relation to the calculation of the net business assets, or equity for a privately incorporated business such as the Business, PAM3 sets out a formula in relation to calculation of net business assets. Such a formula is notably absent from the Regulations. Of particular relevance in this case is the treatment of the director’s loan advanced to the Business, in that it should generally be added to the net equity of the Business (net assets) as recorded in the balance sheet.

16. The financial reports provided to the Department by the applicant were in respect of the 12-month period between 30 September 2015 and 30 September 2016.  According to the respective balance sheets, net losses were recorded of AUD57,459 and AUD31,981 respectively.  The Tribunal was satisfied of the existence of the assets in cash and office fit-outs totalling AUD202,733 at 30 September 2015 and AUD192,775 at 30 September 2016.  The Tribunal also accepts the current liability in respect of GST and payroll liabilities owing at 30 September 2015 and 30 September 2016 of AUD30 and AUD1,342 respectively.  This means that the Tribunal must be satisfied that the director’s loan account in respect of 30 September 2015 and 30 September 2016 is at least AUD157,459 and AUD131,981 respectively so as to satisfy the requirement for net assets in the Business to be at least AUD100,000.

17. It is evident from the balance sheet of the Business that the director’s loan was AUD260,162 at 30 September 2015 and AUD223,414 at 30 September 2016. The general ledger account of the director’s loan account from commencement of operation of the Business to 30 September 2016 was before the Tribunal.  There were two initial deposits injected into the Business that are recorded on 1 April 2014 and 18 July 2014 of AUD135,687.43 and AUD150,000 respectively, of which the Department only accepted the AUD150,000.

18. Bank statements of the Business record deposits from Ms Balaei’s personal bank account on 2 June 2014 to the Business Westpac Business Flexi account of AUD133,963, and on 18 July 2014 to the Business Westpac eSaver account of AUD150,000. While the total of AUD283,963 is less than the total recorded in the director’s loan account at 18 July 2014 of AUD285,687, as discussed below it ultimately has no impact on meeting the requirement of the relevant regulation.

19. A MoneyMex summary detailing foreign transfers from the applicant’s spouse in Iran to their joint bank account in Australia was before the Tribunal. The summary set out numerous transfers between 25 June 2013 and 5 July 2016, totalling AUD799,073 and including an initial transfer on 25 June 2013 in the amount of AUD350,000.  Accordingly, the Tribunal is satisfied that at 18 July 2014, AUD283,963 had been loaned to the Business by Ms Balaei and her spouse and had been lawfully acquired.

20. At 30 September 2015 and 30 September 2016, further adjustments in relation to repayments of the loan and other incidental amounts injected into the Business as recorded in the general ledger account of the director’s loan result in the Tribunal calculating the balance of the director’s loan account at 30 September 2015 and 30 September 2016 to be AUD258,438  and AUD221,690 respectively and finds accordingly. Once these amounts are added to the net loss figures, the net assets of the Business for the purpose of assessing cl.890.212 are clearly met:

30 September 2015	30 September 2016
Net loss	(AUD57,459)	(AUD31,981)
Director’s loan balance	AUD258,438	AUD221,690
Net assets in the Business	AUD200,979	AUD189,709

1. As discussed at hearing, if the applicants fail to meet cl.890.211(2)(b) of Schedule 2 to the Regulations, it means that they cannot satisfy all of the criteria at the time of application, regardless of whether they meet the net assets provisions. Consequently, while the applicant meets cl.890.212 of Schedule 2 to the Regulations, for the reasons discussed above, it is unfortunate that the requirements under cl.890.211 of Schedule 2 to the Regulations are unable to be met. As one of the essential requirements for the visa is not met, the decision under review must be affirmed.

2. Further, because the first named applicant is unable to satisfy cl.890.211 of Schedule 2 to the Regulations, the secondary applicant is unable to satisfy cl.890.311 of Schedule 2 to the Regulations because he is not a member of a family unit of a person who holds a Subclass 890 visa granted on the basis of satisfying the primary criteria for the grant of the visa. Therefore, the decision in relation to the secondary applicant must also be affirmed.

   DECISION

3. The Tribunal affirms the decision not to grant the applicants Business Skills (Residence) (Class DF) visas.

   Robyn Anderson
   Member